Friday, 16 June 2017

Capability and the re-deployment argument

 The Claimant in this case was dismissed on the grounds of capability.She lost her claim of unfair dismissal after the ET found that the Respondent had a genuine belief that the Claimant's capability fell below a standard that they considered acceptable and she had not been dismissed for raising an issue of overwork.The Claimant appealed on the grounds that an employer should consider redeployment prior to making a decision to dismiss on capability grounds.

The EAT dismissed the appeal.The Employment Judge did not err in law in the way he approached the question whether the Respondent ought to have found redeployment for the Claimant after her dismissal on capability grounds.

Awojobi v London Borough of Lewisham UKEAT/0243/16/LA

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Self-incrimination and employment tribunal procedure examined

The Claimant was dismissed after the Respondent found he had been dishonest.He brought a claim of unfair dismissal at the ET. At the hearing,one of the Respondent's witnesses said they had heard that the police had referred his case to the CPS (although no criminal charges were ever brought).

The EJ decided that the Claimant should not give evidence because of the privilege against self-incrimination and he continued the case without the Claimant being cross-examined.He dismissed the claim and the Claimant appealed.

The EAT allowed the appeal.The Claimant's evidence,and cross examination apon it,was relevant to the issues the Employment Judge had to decide.He should not have proceeded without hearing it,and the Claimant's representative did not consent to that course.

The Employment Judge had not,however,been bound to adjourn the case.He could and should have waited to see if the Claimant  had claimed any privilege against self- incrimination and made an application to adjourn.He should have considered any application to adjourn having regard to the submissions of both parties.

Coletta v Bath Hill Court (Bournemouth) Management Co.Ltd. UKAET/0297?16/RN

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